Mahima Rai And Others vs State Of Jharkhand And Others

Gautam Kumar Choudhary, J

The F.I.R. in Seraikella P.S. Case No.50 of 2021 under Sections 420, 467, 468 and 120B of the Indian Penal Code pending in the Court of learned Chief Judicial Magistrate, Seraikella is under challenge in the instant criminal miscellaneous petition filed under Section 482 of the Cr.P.C.

The petitioners are the purchasers of the plot of land executed by other co-accused persons, who have been arrayed in the complaint petition which is the basis of present case.

The challenge to the initiation of the criminal proceeding is in two folds. Firstly, the mandate of Priyanka Srivastava & Another Versus State of U.P. & Others, (2015) 6 SCC 287 para 31, has not been followed. The second ground of challenge is that even if it is assumed the F.I.R. to be true, no offence will be made out as the petitioners are the bona fide purchasers of land duly executed by the co-owners of the said property in view of ratio laid down by Hon’ble Supreme Court in Mohammed Ibrahim & Others Vs. State of Bihar & Another, (2009) 8 SCC 751.

It is submitted on behalf of the petitioners that the complainant has already moved Deputy Commissioner-cum-Registrar for cancellation of the said sale deed executed in favour of the petitioners.

Learned A.P.P. assisted by learned counsel on behalf of opposite party no.2 have opposed the quashing petition. The petitioner in connivance with accused no.1 prepared a forged genealogical table. At this stage, the Court cannot enter into roving enquiry. There are serious allegations of forgery apart from the allegations under Section 420 of the Indian Penal Code.

Nemo debt quod non habet- No one can transfer a better title than he himself has is the fundamental principle of property law. The question that is raised in the instant quashing petition is whether in case of transfer of property by a co-owner having an imperfect title or even by one who has no title can a criminal proceeding can be initiated by the real owner against the purchaser of the said property.

This Court is of the view that bonafide purchaser cannot be prosecuted for the said offence in view of the ratio laid down in Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 16. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of “false documents”, it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.

When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted.

When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused.

(emphasis supplied)

Further, allegation of making a false document by way of a false genealogical table is against Accused No.1 and not against this petitioner as stated in para 8 of the complaint. Once he is not a maker of the false document, he cannot in any case be prosecuted for the offence of forgery as held in Sheila Sebastian v. R. Jawaharaj, (2018) 7 SCC 581

The key to unfold the present dispute lies in understanding Explanation 2 as given in Section 464 IPC. As Collin, J., puts it precisely in Dickins v. Gill [Dickins v. Gill, (1896) 2 QB 310 (DC)] , a case dealing with the possession and making of fictitious stamp wherein he stated that “to make”, in itself involves conscious act on the part of the maker. Therefore, an offence of forgery cannot lie against a person who has not created it or signed it.

Under the aforesaid facts and circumstance of the case, this Court is of the view that on the allegation made in the complaint/FIR, no prima facie case is made out for the offence alleged against the petitioners who happen to be the purchasers of the property, and it will be an abuse of process of Court to permit the continuation instant criminal proceeding against them.

Under the circumstance, the FIR is quashed so far as the petitioners are concerned.

Criminal Miscellaneous Petition is allowed.